Omaha daily bee., 1887-12-06
MIR. WEBSTER'S OPINION.
He Upholds the Cancellation OF the
CITY Hall Contract.


City Hall Contract.
Yesterday City Attorney John l.. Webster
gave to Mr.. Balcombe, chairman of the board
of public works, his opinion in regard to the
annullment of the contract with Rcgan Bros.
for the construction of the basement of the
new city hall After the usual summary of
the letting of the contract, and the reasons
advanced for it's annulment. Mr.. Webster
says:
The power of the chairman of the board of
public works to annu and cancel said contract
under certain conditions is therefore given
in language of no doubtful meaning. Parties
to a contract may make any agreement what
ever, as long as said agreement is consistent
with law and public policy. The pro-
visions of said contract are neither
in violation Of nor inconsistent with
any ordinance of the city or any
law of the state. 1t is a special stipulation
between the parties to this contract, applica-
BILE to this contract only, comforting upon the
department of the city government primarily
vested with the power to make contracts, u
power nowhere existing. to cancel and annul
this contract upon certain conditions therein
named. This feature of the contract is not
unlawful; if it is Objectionable, the objection
should have been urged before the provision
became the mutual obligation of the parties
to the contract. After the execution and
delivery of the contract, any objection to the
provisions thereof comes too late
Is said provision Of said contract contrary
to public policy! How in any manner it can
be, certainly does not suggest itself to my
mind. The duties of the board of public
works prescribed by law especially put it in
their power to know when contractors are
fulfilling their obligation. Said board makes
the contracts on behalf of the city, and super
intends the work done.
And obviously it was because their duties
were such as to enable them best to know
when the contract was assigned, the work
abandoned the instructions of the engineer
violated, or the specifications and stipula.
tions in said contract neglected, that this
provision was put in said contract by the
agreement of said board and said Rcgan
Bros with the approval OF the mayor and
city council. The whole design and effect of
the provision is to subserve the public in
tereStS.
My opinion is, therefore, that if the facts
or conditions, or any of them existed upon
which it was agreed by the terms Of said
contract that the chairman of the board of
public works might cancel and annul the
| same, said chairman had the power and it
was his duty to annul and cancel said con-
| tract; and such annulment and cancellation,
| if exercised reasonably-not arbitrarily and
| caprciously-is conclusive on both parties to
| this contract. The charter provided then as
now: ut shall be the duty of such board
of public werks, and it shall have
power to make contracts on behalf of
| the city for the performance of
I all such improvements as may be ordered by
| the mayor and council: to superintend the
| performance of all such work and the cree
tion of such improvements; to approve the
estimates of the city engineer which may be
made from time to time OF the value OF the
work as the same may progress; TO accept
| any work done or Improvement made when
the same shall be fully completed according
| to contract; subject, however, to the ap-
| proval of the mayor and council, and to per-
| form such other duties as may be devolvcd
| upon them by ordinance"
It will be seen under this section of the
| charter that the board of public works is
| primarily clothed with power to make con-
| tracts for public improvements in the name
| of the city, but subject to the approval of the
''mayor and the council" So, likewise, the
,1j0ard OF public works shall accept work
when completed, subject to the approval Of
| the ''mayor and the conne!l."
| If we look at sections II to 60 inclusive of
the charter we will observe that the Mayor
and Councl'' are continuously named as the
| equally true under the old charter This
law making power representing the city
| of Omaha, by its approval OF the Regan
| Bros. contract, vested the power of canccll-
ing the contract in the chairman of the board
of public works, 1t was the city Of Omaha
acting by and through its designated officer.
annul that actionl think not. The
power of cancellation was not by
the contract, made subject to the approval of
the council Nowhere in the charter do we
find any authority vested in the council to
undo or modify pre-existing, or to nuliify
any executed transaction of the board OF pub
| lie works, made or done under duly exc
| cuted contract.
The contract having been annulled by the
chairman of the board of public works, Re-
gan Bros cannot be compelled to go on with
| the work unless they choose so to do. Re
| gan Bros may accept the cancellation, and
| il so, the right of the city OF Omaha and OF
Regan Bros. must be determined as matters
| stood on the day of the cancellation. The
council by "a resolution cannot compel
Regan Bros. to complete the work. This
| cancellation was and is binding upon both
parties if Regan Bros. so accept it. The city
of Omaha might have extended the time for
| the completion of the work. and might by
| some proper action, have waived any short
comings on the part of the contractors The
: city might also have controlled the action OF
the board of public works relating to this
| contract.
What would be the effect OF legislation on
this subject by the mayor and coun-
ell or what would have been the
} effect of any action by the mayor
and council, instructing the continued
prosecution Of the work before the cancclla
ton had taken place i do not express an
opinion upon as no such state OF facts IL
! before me for consideration. 1t is my opinion
therefore: go
/. That, by the trust of the contract with
} Rcgan Bros, the chairman Of the board OF
} public works was clothed with authority tc
annul and cancel the contract, and that his
action in cancelling the same annulled the
} contract, and that the same is at an end until
the same shall be in some legal manner
revived.
2. That mere resolution of the council
disappearing of the action of the board OF
/, public works in cancelling the contract did
not revive tho contract.
} JOHN l.. WEBSTER, city attorney.
Came Back and Was Arrested.
F. L. Everett who claims to be map pub
, Usher. but who appears to be crook and